"Provocative Act" Doctrine Narrowed in California Murder Case

By Minara El-Rahman on November 13, 2009 12:50 PM

There are a variety of ways someone can be guilty for a murder physically committed by someone else. In addition to being part of a conspiracy, or committing another felony (such as armed robbery) in which a partner kills the victim or a bystander, one of can be guilty of murder under something called the "provocative act" doctrine.

The "provocative act" doctrine applies when someone commits an act that provokes someone into killing someone else. The classic example is an attempted murder in which the victim is provoked into firing a gun in self defense, killing a bystander or an accomplice in the attempted murder.

Last week, the California Supreme Court narrowed the "provocative act" doctrine by making clear that to be guilty of first degree murder, all participants must act willfully, deliberately, and with premeditation.

The facts behind this case are intense. Four men were alleged to have tried to rob a man named Jimmy Lee Harris. Harris used a knife to defend himself against all four and wound up stabbing one of the accomplices to death.

The trial court found the accomplices guilty of first degree murder for their partner's death under the provocative act doctrine.

The defendants appealed. A court of appeals agreed with the trial court, and the defendants appealed again -- this time to the state Supreme Court.

The California Supreme Court sided with the defendants, reversing the appeals court below because at trial, the jury was not instructed that in order to be guilty of first degree murder, each person must have acted willfully, deliberately, and with premeditation. The case will now go back to the appeals court for consideration of whether the botched jury instructions were prejudicial.

What does this case mean practically? If the accomplices in a case like this had no intent to kill anyone, they can't be guilty of murder when the victim takes the life of one of the partners. If they intended to kill the robbery victim, they could be found guilty of murder if instead killing the victim, the victim kills one of them.

To be clear, the accomplices in this case need not have had the intent to kill their own partner. Intent to kill Jimmy Lee Harris would suffice. If they acted with the intent to kill Harris, they can be found guilty of their partner's murder by having provoked Harris into killing him.

As for the more common scenario in which one member of a group committing a felony (such as armed robbery) kills someone -- in those cases, everybody committing the robbery can be guilty of murder under the felony murder rule, even if they did not specifically intend to kill anyone.